Ethics

    I broke a cardinal parental rule at dinner Wednesday. I didn?t chew well and a particularly insolent morsel lodged midway down my esophagus and stayed put. This blocked all sustenance. I couldn?t swallow. Thursday morning saw no change. I considered trying to teach my 2 o?clock class but by then I would not have had food or water for more than 24 hours. 

            ?How long,? I asked the gastroenterologist, ?can a person go without water?? 

           ?We don?t like to find out,? he said. 

            I canceled class and went to the NYU Medical Center emergency room. 

            One thing you do in an emergency room, if your situation is not dire and mine wasn?t (yet), is wait. Is there a field of scholarly study whose focus is social space. There should be, whether the space is public (like a park or the Piazza San Marco or Times Square at New Years Eve) or restricted, like an emergency room or a university club. So while waiting, I watched how the space worked. I had a particular curiosity. 

    Second, it is a place of great anxiety. Whatever brings you there may profoundly change your life. Or not. You don?t always know. No one plans to go to an emergency room. The need is sudden and disruptive. 

    Third, emergency room managers cannot know the kind or volume of problems that will present themselves each day. 

    Fourth, and of immediate interest to me, medicine like law is a profession. The relationship between those who staff the room and its users is a professional one. Doctor-patient relationships, of course, are similar to those between lawyer and client. (The other two classical professions (teaching and the clergy) are dissimilar.) 

            So while Barbara ?represented? me with the hospital staff, as patient advocate and spouse, I studied the emergency room. How in this atmosphere, so much more challenging than anything lawyers face, do medical professionals behave? 

            Much better, I?m pleased to say, than in Tolstoy?s great novella The Death of Ivan Ilyich. Ilyich is a judge who falls ill and visits or is visited by many doctors. Ilyich is not a nice man. He is not nice to people who appear before him or to his family. Not until he is a patient, and dependent on a different professional, does he begin to realize how he badly he may have behaved as a judge, father and husband. I sometimes read a portion of the following passage to my ethics students. In it, Ilyich has gone to see a doctor early in his illness. 

There was the usual period in the waiting room, and the important manner assumed by the doctor ? he was familiar with that air of professional dignity: he adopted it himself in court ? and the sounding and listening and questions that called for answers that were foregone conclusions and obviously unnecessary, and the weighty look which implied, you just leave it all to us, and we?ll arrange matters ? we know all about it and can see to it in exactly the same way as we would for any other man. The entire procedure was just the same as in the Law Courts. The airs that the put on in court for the benefit of the prisoner at the bar, the doctor now put on for him?.

            To Ivan Ilyich only one question was important: was his case serious or not? But the doctor ignored this misplaced inquiry. From the doctor?s point of view it was a side issue, not under consideration: the real business was the assessing of probabilities to decide between a floating kidney, chronic catarrh, or appendicitis. It was not a question of Ivan Ilyich?s life or death but one between a floating kidney or appendicitis. And this question the doctor, in Ivan Ilyich?s presence, settled most brilliantly in favour of the appendix, with the reservation that analysis of the urine might provide a new clue and then the case would have to be reconsidered. All this was to an iota precisely what Ivan Ilyich had himself had done in equally brilliantly fashion a thousand times over in dealing with persons on trial?.

            But he said nothing. He rose, placed the doctor's fee on the table, and remarked with a sigh, "We sick people no doubt often put inappropriate questions. But tell me, in general, is this complaint dangerous or not??

            The doctor regarded him sternly over his spectacles with one eye, as if to say: "Prisoner at the bar, if you will not keep to the questions put to you, I shall be obliged to have you removed from the court."

            "I have already told you what I consider necessary and proper. The analysis may show something more." And the doctor bowed.                   

            And thus does Ilyich learn the price of professional arrogance for patients and so for clients and litigants. 

    Ilyich could have learned a second lesson from his experience as a patient and almost did.  His wife has largely abandoned him emotionally. She seems to think his illness is his fault and an affront to her. ?When she touches him he is swept by a paroxysm of hate.? Ilyich?s servant Gerrasim is his only comfort. Ilyich almost comes to a realization.

    Tolstoy tells us what he himself thinks, but Ilyich doesn?t get it. He fails to realize that doing one?s duty is not enough. It is the minimum. By doing his duty Ilyich meant merely that he acted as formally required of a judge, father and husband. Ilyich was what we would today call careerist. Career was all. Moving ever higher in the judiciary was his dominant, if not his exclusive, focus. He thereby ignored a cardinal rule for happiness: Put more energy and time into personal relationships, with friends, family and community, than in business and professional ones. This is an especially good lesson for lawyers, especially today when we can be on call all the time. 

            In my neighborhood, professional parents often walk their children to school. (Sometimes the nanny does.) That task cannot take more than twenty minutes. Yet how often do I see parents holding a child?s hand with one hand and their Blackberry with the other, checking e-mail or shouting into their phones. Very few of us are so important that checking e-mail has a higher priority than talking to our children during the twenty minutes that we walk them to school.  

            Back to the ER. The doctors dislodged the morsel and I?m on soft foods for a while. Then we?ll try to figure out why it happened. But today, a beautiful spring day in New York City, Barbara and I went to the most spectacular park in the world, Frederick Law Olmstead?s Central Park, and sat on a bench near the Great Lawn watching all the people who (we decided) had been given walk on roles in our life (though they did not know it). Then we once again strolled around the Jacqueline Kennedy Onassis Reservoir, which is glorious any time of year but especially on a nice spring day and especially when you can share it with your sweetheart.